SYED SHAH GULAM GHOUS MOHIUDDIN KHAMESUL QADRI Vs. SYED SHAH ABDUL HAR KHAMISUL QADRI

JUDGEMENT

(1.) This appeal arises out of a suit for setting aside the decree passed on 4th Mehar 1317F., and for partition of the matruka property of late Syed Shah Abdul Rahim among his heirs in specified shares according to Mohammedan Law, which has been dismissed by the Darul Khaza Court on 24-9-1351F on the ground that such a suit was not maintainable in law. This appeal has been heard by the Division Bench of the erstwhile Hyderabad High Court and has now been referred to the under Section 8 of the Hyderabad High Court Act on account of difference of opinion between the learned Judges.

(2.) Briefly stated the facts are: that Syed Shah Abdul Rahim the Sajjada of the Darga "Sayyed Shah Nuruddin Saheb" situated at Nampalli, thed on 21st Aban 1314F, leaving him surviving four sons and two daughters am follows: (1) Syed Shah Ahdul Har, defendant No. 1, (2) the late Khammarunnisa Begum, mother of plaintiffs 4 and 5, (3) the late Badihunnisa Begum, mother of plaintiff No. 3, (4) the late Syed Shah Nuruddin, father of plaintiffs 2 and 3, (5) Abdul Razak, defendant No. 2 and (6) Gbouse Mohiuddin, plaintiff No. 1. Defendant No. 1 being the eldest of the family became tho Sajjada and was in sola management of the property left by the deceased. About 3 years after the demise of the propositus, it appears arbitration was started with regard to the distribution of the matruka property and an award was paused on 26th Sherwar 1317F. This award was made the rule of the Court under a decree of the Darul Khaza Court dated 4th Mehar 1317F., passed against defendant No. 1. According to this decree, out of the estimated entire matruka property of Rs. 2,28,650.00 property worth Rs. 45-790-14-0 fell to the share of defendant No. 1 and the remainder to the other sons and daughters according to their shares. There was some further immoveable property marked as Exs. B-1 to B-10 which was not brought in hotehpot for distribution among the heirs but was set apart to meet the expenses of the darga and was kept in exclusive possession of defendant No. 1, the other heirs having disclaimed all rights to the same. This decree passed by the Darul Khaza Court was put into execution so far as the moveable property was concerned as they were already in possession of their shares in immoveable property. The parties since then had been enjoying their respective shares according to the said decree. After a lapse of about 33 years, the plaintiffs brought this suit for cancellation of this decree. Their long silence has been attributed to the fact that they could not come to know about the fraud practised on them by defendant No. 1 till 7th Mehar 1347P when defendant No. 1 in a proceeding relating to the resumption of the said property as wakf property wrote to the Director, Ecclesiastical Deparment that this property was not the wakf property but constituted his exclusive property which fell to his share in the partition effected under the Darul Khaza Court decree of 1317F. This letter, it is said, has disillusioned the plaintiffs who came to know of the fraud played on the arbitrators and on the Court in the partition proceedings. Their contention is that defendant No. 1 fraudulently managed to exclude the properties covered by Exs. B-1 to B-10 from the subject matter of arbitration on the false cretext that they were meant and reserved for the expenses of the darga and that this fraud was brought to light only when he claimed his exclusive title on the ground that they fell to his share as matruka property.

(3.) Their further contention is that at the time of the demise of Syed Shah Abdul Rahi, all his sons but for defendant No. 1 and one daughter Khanrunnisa Begum were minors and were under the care and protection of defendant No. 1. Being the eldest, according to the traditions of the family, all his brothers and sisters looked upon him with awe and reverence and submitted to his behests. Defendant No. 1 taking undue advantage of his position made a farce of a reference and got all the written statements on behalf of the minors prepared by himself to he filed before the arbitrators and managed to get an award passed as he liked and similarly got a suit filed and got a decree passed in terms of the award against himself. In all these proceedings some of the minors were shown as sui funs and Syed Nuruddin himself a minor was mad* to act as a guardian of another minor, plaintiff No. 1. The whole proceedings in fact were manoeuvred by him with intent to take a portion much larger than his due share and his brothers and sisters were in fact made only his mouthpiece. It is therefore contended that a decree thus obtained cannot be held to stand in their way to realise their due share in the matruka of the deceased; and certainly a decree passed during the minority of the plaintiff without any proper representation is a nullity and also being a product of fraud should be set aside.